McConnell v. McKillip

Decision Date30 July 2008
Docket NumberNo. 1:06-cv-00769-LJM-TAB.,1:06-cv-00769-LJM-TAB.
PartiesRoger McCONNELL, Plaintiff, v. Matt McKILLIP, Phillip P. Williams, Jefferey S. Rudoph, Jack W. Dodd, Roger Phillips, Heath Haalek, Shawn J. Haus, Defendants. Roger McConnell, Plaintiff, v. Matt McKillip, Individually and as Mayor of the City of Kokomo; Phillip P. Williams, Jeffery S. Rudolph and Jack W. Dodd, Each Individually and as Members of the Board of Public Works and Safety of the City of Kokomo; K.P.D. Officer Roger Phillips Badge # 301, K.P.D. Officer Heath Haalek Badge # 286, and K.P.D. Officer Shawn L. Haus Badge # 283, Each Individually and as Employees of the City of Kokomo, Defendants.
CourtU.S. District Court — Southern District of Indiana

Dan J. May, May Law Office, Kokomo, IN, for Plaintiff.

Andrew P. Wirick, Christopher Douglas Cody, Hume Smith Geddes Green & Simmons, Indianapolis, IN, for Defendants.


LARRY J. McKINNEY, District Judge.

This cause is before the Court on Defendants' Motion for Summary Judgment (Docket No. 31). Plaintiff, Roger McConnell ("McConnell"), initiated this lawsuit seeking relief pursuant to 42 U.S.C. § 1983 and state law for, among other things, unlawful search and seizure of his property, battery, wrongful arrest, false imprisonment, and trespass. He has sued the defendants, who are all former or current City of Kokomo ("City") officials, in their individual and official capacities. The instant motion has been fully briefed and is now ripe for ruling.

For the reasons stated herein, Defendants' motion is GRANTED in part and DENIED in part.


The facts of this cause stem from a nuisance abatement action undertaken by City officials at McConnell's property and for the most part, those facts are uncontested. McConnell resides at 2110 South Lafountain Street and owns an adjacent lot located at 2100 South Lafountain Street. The lot is separated from McConnell's home by a fence, and officials were aware that the two pieces of property were separate lots. McConnell had posted "No Trespassing" signs on his property.

According to Defendants, both lots were in violation of the City's nuisance ordinance because they contained debris, such as litter and abandoned vehicles. On or about March 24, 2004, a City inspector served McConnell with an abatement notice. The evidence submitted by Defendants suggests that the abatement notice was served via certified mail, and the return receipt that appears to bear McConnell's signature is dated as March 29, 2004. Defendants contend that the officials intended the abatement notice to apply to both lots; however, the abatement notice fails to notify McConnell of a violation at his residence. Instead, it lists only the empty lot at 2100 South Lafountain Street as the "nuisance" property. Defendants assert that the failure to list both pieces of property on the abatement notice was a mere clerical error.

According to the abatement notice, McConnell had ten days from the date of service to comply with the abatement notice before it became final. Thereafter, on May 3, 2004, the Board of Public Works and Safety ("Board") held a hearing on the matter. McConnell did not attend the hearing. Like the abatement notice, the Board's minutes for the hearing—what Defendants style as the "Cleanup Order"—only list the property as 2100 South Lafountain Street and do not indicate that both pieces of property were at issue; however, City inspector Steven Barnett ("Inspector Barnett") testified at his deposition that he represented that both lots were at issue. At the hearing, Inspector Barnett presented testimony and evidence regarding the alleged violations at the property. Inspector Barnett informed the Board that he and another inspector, Joe Zuppardo ("Inspector Zuppardo"), had spoken with McConnell on two occasions and that McConnell had refused to comply with the request to clean up his property.

Following Inspector Barnett's presentation, Defendant Jeffrey S. Rudolph ("Rudolph"), one of the Board's members, moved for the Board to authorize City crews to enter McConnell's property and abate the nuisance by removing all abandoned vehicles, trash, and debris. Defendant Jack W. Dodd ("Dodd"), another Board member, seconded the motion and the motion carried based on Rudolph's and Dodd's votes. Because Rudolph and Dodd had both voted in favor of the motion, Defendant Phillip P. Williams ("Williams"), who presided over the Board, did not vote. However, after the meeting, Williams instructed Inspector Barnett to expedite the cleanup procedure by abating the nuisance the next day, which was the day of primary elections.

The next morning, a number of City employees arrived at McConnell's property. Lt. Shawn L. Haus ("Lt.Haus") of the Kokomo Police Department had been instructed to dispatch officers to the area for the cleanup of the property at 2110 South Lafountan Street based on a concern that McConnell might challenge the cleanup crews when they attempted to enter the property. Lt. Haus assigned several officers, including Sergeant Heath Haalek ("Sergeant Haalek") and Officer Roger Phillips ("Officer Phillips"), to assist him with preventing any injury to City employees.

When Lt. Haus arrived on the scene, he observed Inspectors Barnett and Zuppardo speaking with McConnell and overheard McConnell say "you're not coming in here." McConnell then picked up a spear, walked toward Inspectors Barnett and Zuppardo, and yelled "if anyone comes on my property, they're going to get hurt." McConnell then replaced the spear. Several minutes later, a payloader started to drive toward the privacy fence on the north side of McConnell's property. McConnell picked up a large board from the ground and began yelling "you're not going in there." Lt. Haus saw McConnell raise the board over his shoulder like a baseball bat and begin walking toward City employees, including Inspectors Barnett and Zuppardo. Lt. Haus and Sergeant Haalek, fearful that McConnell was going to strike one of the men, ordered McConnell to put down the board. After McConnell failed to comply with the officers' orders, Sergeant Haalek shot McConnell with a taser. McConnell subsequently fell to the ground, was handcuffed, and arrested for resisting law enforcement, disorderly conduct, and intimidation. Officer Phillips assisted with taking McConnell into custody and transporting him to jail.

After McConnell was arrested, City employees proceeded to clean up both lots. Defendant Matt McKillip, then-Mayor of the City ("the Mayor"), was on the scene. Pat Munsey ("Munsey"), a reporter from a local newspaper, was also present and contends that the Mayor was overseeing the clean up of McConnell's property.1 Munsey also avers that he interviewed the Mayor and other City employees and learned that the clean up effort was intended to fulfill the Mayor's campaign promise of beautification by targeting nuisance properties.


Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Summary judgment is the "put up or shut up" moment in a lawsuit. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir.2003), reh'g denied. Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir.1996), cert. denied, 520 U.S. 1116, 117 S.Ct. 1246, 137 L.Ed.2d 328 (1997). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir.1992).

In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir.1996), cert. denied, 519 U.S. 1109, 117 S.Ct. 945, 136 L.Ed.2d 834 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir.1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.1992). "If the nonmoving ...

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